The EU-Turkey Deal: Expediency Trumps the EU’s Higher Calling

The deal between the EU and Turkey to manage the flow of refugees from Syria, made public at the end of the European Council meeting on March 18, has big potential benefits for both the EU and Turkey. But it has big costs as well. If successful, it will stem the tide of refugees, help prevent the collapse of the Greek state, allow the EU to start healing its own wounds and prepare the ground for a more orderly placement and distribution of the refugees.

But the price the EU is paying for this deal is the exposure of its insincerity with respect to its own values and principles. At a time when Turkey’s human rights record, its respect for freedom of expression and the media, and its respect for judicial independence have reached new lows, the EU is choosing to remain mum and do business with it as though it is a normal interlocutor. Expediency is trumping the higher calling of the European project. And it’s doing so very publicly.

Yesterday, the first groups of expelled refugees began arriving from the Greek Islands in Turkey. They were all male groups, accompanied by Frontex (the EU border security agency) police forces. Both on the Greek and Turkish side, authorities involved acted with a total lack of transparency, leaving the journalists following the news totally in the black. It was reported that those deported were to be moved to camps “in the countryside,” or would be expelled from Turkey to their countries of origin. Meanwhile, the inhabitants of Dikili, the Aegean seaside resort to which the refugees are being deported, were protesting as a reception center was being built in their town without prior consultation. At the other end of Turkey, in the Southeastern town of Kahramanmaraş, there were other protests by local folk as refugee camp construction mushroomed. This camp was being built near local Alevi community dwellings; as an oppressed religious minority group, this group is not at ease about neighboring predominantly Sunni refugees.

For all its imperfections and the inherently hypocritical politics of its preparation, the deal is now open to scrutiny in legal, practical, and political terms. The following are some thoughts on it and on Turkey as the refugee broker the EU has agreed it should be.

After spending four and a half years in deep somnolence with regard to the Syrian tragedy, members of the European Union were confronted with the harsh reality of the consequences of their inaction, insensitivity and complacency. Last summer, Syrians moved en masse to the cities of member countries, reminding them that Syria and its bloody fate were actually a neighborhood problem for Europe, not some distant or cosmic event.

Coming on top of the Eurozone crisis, the bursting refugee crisis has shaken the Union to its foundation and seriously threatened its cohesion. By last May, the German Interior Ministry was expecting 450 thousand refugees. The number was corrected upwards throughout the summer. As the trickle turned into a flood for all of Europe and anger in populations and in xenophobic governments mounted, a defiant Angela Merkel decided that Europe could not tolerate the scenes of desperate people being turned away. This was the same Merkel who, earlier in July, told a 14 year-old Palestinian girl whose father’s residency permit was about to expire that “We can’t accept everybody.”

Merkel stuck to her decision despite the political fallout and public reaction she faced. She immediately understood that Turkey, which probably facilitated the flow of refugees in the summer and which itself was hosting more than 2.7 million refugees without granting them this status, was key to the resolution of this crisis. In order to move things forward, keep the Union in one piece, and finally to save her own political career, the Chancellor decided to cooperate with Turkish President Recep Tayyip Erdogan, with whom she did not enjoy a smooth relation.

To that end Merkel broke one of the cardinal rules of the EU concerning elections, and visited Turkey two weeks prior to the “repeat” election this country was about to hold on November 1. She thereby gave a boost to Erdoğan, who has lost his parliamentary majority in the first election but then won it back in the second. Later, she worked mainly with Turkish Prime Minister Ahmet Davutoglu, helped rekindle the Turkey-EU relations with a first summit between the Turkish PM and heads of government or state of the EU. She changed her anti-Turkish EU membership tune slightly and by all indications put a lot of pressure on the German media not to make too big of a case out of Turkey’s ongoing war against the PKK in the southeast of the country.

A conversation that took place in the Fall between President Erdogan and European Commission President Juncker and European Council President Tusk, leaked by a Greek website, amply demonstrated the lack of trust—not to mention common courtesy—between the parties. In the conversation, Erdogan threatened the EU with opening the floodgates of refugees. In turn, Juncker accused the Turkish President of ingratitude, since the Commission withheld the publication of its annual report on Turkey, which for 2015 was pretty negative, until after the Turkish election.

In the end, it was mainly Angela Merkel and Ahmet Davutoğlu who have forged the deal that the rest of the Union has now accepted. With the deal, Merkel consolidates her position both within the Union and within Germany, despite the fact that her party lost ground in the Lander elections that took place four days prior to the signing of the agreement. Turkey, for its part, got less than what it bargained for in the initial presumptive agreement of a week earlier. But it won the big prize it sought, which was the right to visa free travel for Turkish citizens. Turkey still needs to abide by 72 requirements, half of which have already been fulfilled, for visa restrictions to be lifted. These requirements that are organized in five thematic groups: document security, migration management, public order and security, fundamental rights and readmission of irregular migrants. But the deal is big step toward Turkey’s goal.

Yet almost as soon as the deal came into effect on March 20, leading reputable international agencies working with refugees halted their activities in the Greek Islands in reaction to the EU-Turkey agreement. The UN refugee agency UNHCR, aid organization Medecins Sans Frontieres (MSF), the International Rescue Committee (IRC), and the Norwegian Refugee Council all pulled out of the Greek crisis zones in the Aegean Sea. This is particularly ironic because the EU-Turkey deal has de facto framed the UNHCR as a “guaranteeing party”—obviously without the actual consent of this UN agency. The EU-Turkey agreement stated that: “A mechanism will be established, with the assistance of the Commission, EU agencies and other Member States, as well as the UNHCR....”

This statement is, in fact, the very heart of the agreement. Unless the aforementioned “mechanism” works, there is in reality no deal for the simple reason that the nearly one-million-people-per-year refugee flow across the Aegean Sea will not stop.

The trouble is that for a “working mechanism” to be established, at least as sketched by the agreement, international and EU laws and norms have to be breached. Here’s why.

First and foremost, the deal says that “all new irregular migrants crossing to the Greek islands after the deal takes effect will be returned to Turkey.” But returning “all” persons would inevitably lead to collective expulsion—which is against the EU Charter and the European Charter of Human Rights, not to mention the EU asylum legislation.

The deal then contradicts itself by stating that not everyone will be returned, since it goes on to say: “Migrants arriving in the Greek islands will be duly registered and any application for asylum will be processed individually by the Greek authorities in cooperation with UNHCR. Migrants not applying for asylum or found to be inadmissible will be returned to Turkey.” This part does underline that the EU’s asylum procedure directive will be the legal backbone for assessing cases of those who actually reach the Greek Islands. But it is murky whether the “migrants not applying for asylum” will actually have free and fair opportunities to seek asylum. It will be the Greek authorities who will decide the cases; and the UNHCR would have foreseen the practice as a safeguard to verify whether the international and the EU laws and norms are upheld.

The UNHCR clearly has doubts. It swiftly departed on March 22, lambasting the involved parties by stating that it “would not be party to the deal nor be involved in returns or detention.” It argued that “Greece does not have sufficient capacity on the islands for assessing asylum claims, nor the proper conditions to accommodate people decently and safely pending an examination of their cases.” This is a form of whistleblowing with regards to existence of free and fair asylum opportunities.

What happens then to those whose cases have been found to be “inadmissible”? If a case of asylum is deemed “inadmissible” by Greek authorities according to the related EU Directive, then it has to be, effectively, a rejection based on the assessment that Turkey is either a safe third country, or it has already been the first country where asylum is sought.

Here the conundrum starts in earnest: it is doubtful whether Turkey may be considered a safe third country. Let’s have a look at the definition of a safe third country according to the EU Directive:

Member States may apply the safe third country concept only where the competent authorities are satisfied that a person seeking international protection will be treated in accordance with the following principles in the third country concerned: (a) life and liberty are not threatened on account of race, religion, nationality, membership of a particular social group or political opinion; (b) there is no risk of serious harm as defined in Directive 2011/95/EU; (c) the principle of non-refoulement in accordance with the Geneva Convention is respected; (d) the prohibition of removal, in violation of the right to freedom from torture and cruel, inhuman or degrading treatment as laid down in international law, is respected; and (e) the possibility exists to request refugee status and, if found to be a refugee, to receive protection in accordance with the Geneva Convention.

First of all, Turkey signed the Geneva Convention in 1951, but it has expressed geographical reservations and considered only those coming from Western countries as “asylum seekers.” Since the end of the Second World War, hardly any Westerner sought asylum in Turkey. Currently, the Syrian refugees in Turkey are not officially considered asylum seekers or refugees, but are recognized as “guests” in legal and bureaucratic texts. Around 20 percent of Syrian refugees live in camps, and the rest work their way around the country.

Leading international organizations that work on refugee rights in Turkey point out that other criteria for being a “safe third country” are not fulfilled either. According to international organizations such as Amnesty International and Human Rights Watch, there have been serious breaches of human rights of refugees, including deaths. Yet in other instances, there have been reports of individual or mass expulsions to unsafe countries. There have also been news reports after the deal has taken effect on March 20, that refugees planning to cross to the Greek Islands have been detained en masse. All these add up to mistreatment and open real questions of just how safe Turkey is as a third country. Amnesty International has recently reported that Turkey routinely expels Syrian refugees in groups of 100 people to Syria.

The EU is obviously applying the concept of “safe third country” in the case of Turkey quite selectively. Yet Turkey cannot be a “first country of asylum,” as it does not apply the Geneva Convention in full.

Last but not least is the question of Turkey’s own human rights record domestically. It is just a matter of principled standing and ethical integrity that the EU should take into account Turkey’s deteriorating human rights standards. Legally, there is no obstacle for this refugee deal to be struck between Turkey and the EU as far as standards of human rights law is concerned. But the EU does consider Turkey as a safe country of origin and this makes it possible for EU authorities to reject any asylum applications from Turkey’s own citizens.

Yet the human rights record of Turkey itself has become ever more deplorable since the violent crackdown of the mass protests that shook the country in June of 2013. Currently, some media outlets and eyewitnesses report that there is a large number of civilian casualties in the ongoing military operations in the Southeast of the country. This is in addition to pressures on the media that also included the imprisonment of journalists; academia now is a new target of court cases with the pretext of “fighting unarmed terror.” Just recently, four academics have been indicted for signing a peace petition and were jailed. Not only the EU, but the global community more broadly, has to face the question of whether Turkey is still a safe country for its own citizens, let alone the unfortunate refugees from Syria or like countries.

Under current conditions this is a valid and justified question.